The term nuptial agreement applies to separation, post and pre-nuptial agreements that are made between couples who are or who intend to be married or have a civil partnership. The main difference between the three classes is simply one of timing; pre-nuptials are drawn up before the marriage or civil partnership is entered into, post-nuptials during, and separation agreement if the couple decides to separate.
A nuptial agreement is a contract just like any other. The normal contractual rules apply to determine whether a binding agreement exists, that is, the court will look for offer and acceptance and for an intention to create legal relations.
Here are some advantages to having in place a nuptial agreement:
- A party may want to protect assets such as inherited wealth, an interest in a family business, gifts from a third party, family heirlooms or property owned before marriage.
- The parties can agree at the outset of their marriage how their finances will be divided if they later divorce to save uncertainty, time and stress of later contested proceedings.
- A properly negotiated nuptial agreement must contain financial disclosure, so both parties know at the outset the value (or approximate value) of each other’s assets.
- If one party has an interest in a family business or a private business, a nuptial agreement can protect that interest and prevent disruption to the business if there is a divorce.
- It is often cheaper to negotiate and draft a nuptial agreement than the cost of solicitors contesting financial remedy proceedings at a later date in the event of a divorce.
- Discussing financial issues can be one of the most difficult aspects of marriage. Dealing with this at the outset of a marriage can strengthen a relationship and help with communication.
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